LITTLE ROCK, Ark. (AP) — A federal judge dealt another blow Saturday to Arkansas’ unprecedented plan to execute eight inmates in an 11-day period, saying the men have the right to challenge a drug protocol that could expose them to “severe pain.”
The state still hopes to begin the executions Monday and the attorney general’s office promised an appeal to overturn U.S. Kristine Baker’s order. Arkansas’ supply of one of its lethal injection drugs, midazolam, expires April 30 and Gov. Asa Hutchinson said he wants to use the drugs before they spoil.
Manufacturers object to states using their drugs in executions, and the Arkansas Department of Corrections has said in court filings that it doesn’t have a way of obtaining more midazolam. In a separate case Friday, a state judge issued a temporary restraining order preventing the state from using a paralyzing drug, vecuronium bromide, made by a company that claims Arkansas obtained it under false pretenses.
Another federal judge and the state Supreme Court had already granted stays to two of the eight inmates, reducing the number of executions to six within an 11-day period. Only Texas has executed six prisoners in a shorter timeframe since the U.S. Supreme Court reauthorized the death penalty in 1976.
In her order, Baker said there was a significant possibility that the inmates could successfully challenge the state’s execution protocol. She said that while the state demonstrated it does not plan to torture the inmates, the inmates had a right to challenge the method of execution in an attempt to show it “creates a demonstrated risk of severe pain.” She also noted that the execution team did not have antidotes on hand in case there was trouble with any of the drugs.
“The schedule imposed on these officials, as well as their lack of recent execution experience, causes concern,” she wrote.
The Arkansas attorney general’s office said the decision strayed from previous cases before the 8th U.S. Circuit Court of Appeals and the U.S. Supreme Court.
“It is unfortunate that a U.S. district judge has chosen to side with the convicted prisoners in one of their many last-minute attempts to delay justice,” said Judd Deere, an office spokesman. “Attorney General (Leslie) Rutledge plans to immediately appeal to the Eighth Circuit and ask that today’s injunction imposed by the district court be lifted.”
Under Arkansas’ protocol, midazolam is used to sedate the inmate, vecuronium bromide then stops the inmate’s breathing and potassium chloride stops the heart. McKesson Corp. claims Arkansas improperly used medical credentials to obtain the vecuronium bromide and wants the product returned. It had said Thursday it issued Arkansas a refund of its purchase price but that the drug came back.
In her order Saturday, Baker cited troubled lengthy executions in Alabama, Arizona, Ohio and Oklahoma that used the sedative midazolam. Some states have barred the use of the drug, and courts have reached different decisions on what inmates would have to do to suggest alternative means of execution.
The judge also faulted the state’s policy of not letting lawyers have access to the inmates at the time of their deaths and said the inmates could raise challenges about the drugs to be used.
“The court is mindful of the fact that the state of Arkansas has not executed an inmate since 2005, despite consistent support for capital punishment for Arkansawyers and their elected representatives,” Baker wrote. She said the relatives of victims have waited for years to see executions, but, “by this order, that day is delayed again.”
“These thoughts weigh heavily on the court, but the court has a responsibility to uphold the Constitution. After hearing the evidence … the court is compelled to stay these executions,” she said.
Hutchinson in February had scheduled the executions to take place before the state’s supply of midazolam expires. One execution was set aside because Arkansas didn’t allow for a full 30-day comment period after the inmate won a clemency recommendation, and the state Supreme Court issued another a stay for another inmate Friday so courts can assess his mental health.
Arkansas hasn’t executed an inmate since 2005 because of drug shortages and legal challenges.
Arkansas hasn’t carried out a double execution since 1999.
The inmates’ attorneys had challenges the compressed timetable and the state’s use of midazolam, which has been used in flawed executions in other states. The state’s attorneys have called the challenge an effort to delay the executions indefinitely and have said they don’t have a replacement identified for the drug if it expires.
The inmates lost on some claims, including one that their lawyers couldn’t provide adequate counsel under the state’s schedule and that the tight timetable itself was improper. The lawsuit is among a flurry of challenges the inmates have filed to halt the executions.